Tuesday, July 3, 2012

Circuit Split Watch: Miranda at Booking

This article first
appeared in the July 2, 2012, issue of the National Law Journal’s Supreme
Court Insider.

Under an exception to the Miranda rule, police can ask routine booking questions, such as a
suspect’s name and address, without giving a warning. But what about booking
questions that have the potential to reveal more?

A pending petition for certiorari, filed by the University
of Virginia School of Law’s Supreme Court Litigation Clinic, details a split in
the federal appellate courts about the routine booking exception. The Supreme
Court has already expressed interest in the case.

The key facts begin with Cecil Alford already under arrest
and in the back seat of a police cruiser, incident to an earlier discussion and
chase with police. One of the officers noticed that Alford was “kind of
squirming” in the back seat. At their destination, police searched the vehicle and
found a clear plastic bag with pills and a computer thumb drive under the back
seat. The pills were later determined to contain ecstasy.

During the booking process and without a Miranda warning, police asked Alford if
the thumb drive, found just under the bag of drugs, was his. Alford said yes,
and the drive was stored with Alford’s personal property.

At trial, over Alford’s objection, prosecutors used his admission
about the thumb drive to link him to the ecstasy. He was convicted of drug
possession by a Texas jury and sentenced to five years in prison.

The Texas Court of Criminal Appeals, the state’s high court
for criminal cases, rejected
a Miranda challenge by Alford.
The police inquiry about the thumb drive, the court held, was permissible as a booking
question related to inmate property storage.

Alford filed a petition for certiorari
with the Supreme Court, writing that the federal appellate courts “are deeply
conflicted in their understanding and interpretation of the routine booking
question exception to Miranda.”

The petition describes three approaches, with Texas in the
minority.

Five federal appellate courts use a “should have known”
standard, meaning that when an officer should have known that a booking question
was likely to elicit incriminating information, he must give a Miranda warning.

Four federal appellate courts use an “intent” test; in other
words, the officer must intend his questions to yield incriminating information
to trigger a Miranda duty.

The D.C. Circuit and the Texas high court follow the
“legitimate administrative function” test, which is that if the booking inquiry
“is reasonably related to the police’s administrative concerns,” a Miranda warning is not required.

The petition also points to the same three-way split among many
state high courts.

Texas waived its right to respond to Alford’s petition.
However, the Supreme Court requested a response, due July 12. While a response
request does not guarantee that the Court will hear the case, it does show that
the petition has the Court’s attention.

Five faculty members from the University of Virginia’s clinic,
all former Supreme Court clerks, are on Alford’s petition, including professors
Daniel Ortiz and James Ryan.

The counsel of record is David Goldberg, an adjunct faculty
member who works at Donahue & Goldberg, a two-man appellate boutique firm. Adjunct
faculty John Elwood of Vinson & Elkins and Mark Stancil of Robbins,
Russell, Englert, Orseck, Untereiner & Sauber are also on the petition,
along with Don Davidson, a solo practitioner who was Alford’s counsel below.

UVA Clinic students take the lead in finding cases, collectively
reviewing all federal appellate and state high court decisions. Professor Ortiz
confirmed that a student identified Alford
from reading Texas cases.